Nackipillai v. Velupillai.
1932Present: Garvin S.P.J. and Akbar J.
NACHIPILLAI v. VELUPILLAI et al.
152—D. C. (Inty.) Jaffna, 7,774.
Thesavalamai—Agreement by child of first bed to abandon claim—Renunciation
Where, underv the Thesavalamai, the respondent, who was the daughterof X by the first bed, gave him a document, signed by herself and herhusband in the following terms: —
“Whereas, he (X), having conveyed as “ Nintham ” all the propertiesderived from the mother (of the respondent) absolutely, hasgiven jewellery to the value of Rs. 300 for the share' which oughtto devolve on her out of his properties; we have received thesame and have executed and granted this deed of release,declaring that we have no further right or claim over theproperties movable and immovable in his possession .
Held, that the respondent had not abandoned her claim to a share inthe intestate estate of X.
HIS was an application for the administration of the estate of oneKandar Murugesu. The appellant, as widow of the intestate, applied
for letters of administration, but in her application she omitted to includethe respondent, who was a daughter of the deceased by the first bed,among the heirs and to give her notice. The respondent intervened andclaimed a share of the estate according, to the Thesavalamai. Theappellant contended that she had surrendered her rights to the estate bythe deed in question. *
AKBAR J.—Nachipillai v. Velupillai.
De Zoysa, K.C. (with him Weerasooria and Thillainathan), for appellant.—There are two facts in the recital of the deed. First, the respondenthad received all that she was entitledtoreceive from hermother.
Secondly, she received jewellery to the value of Rs. 300. Shetookthe
jewels in lieu of the share which oughttodevolve on her out ofhis
properties. If the document is treated asanagreement, it is agoodact
enforceable at law (Godfrey v. Godfrey ’). If it is contended as beingobnoxious to public morality as the surrender of a future inheritance, itis submitted that the receipt of Rs. 300 as dowry estopped the respondentfrom repudiating the agreement.
H. V. Perera (with him Nadarajah), for first respondent.—An agreementnot to claim a future inheritance is prohibited under Roman-Dutch lawas being contra bonos mores. A spec successionis cannot be surrendered,
. (Burge, Volume IV. 238). The sum of Rs. 300 was given to compound fora larger sum due to the respondent in the administration case and not asa consideration for the release.
March 16, 1932. Akbar J.—
In this testamentary case for the administration of the estate of KandarMurugesu, the appellant, as the widow of the intestate, applied for lettersof administration, but in her application she only made her children, 'whowere children by the second bed of the intestate, respondents and omittedto include the respondent to this appeal, who is a daughter of the deceasedby his first bed as an heiress, and to notice her as a respondent to theapplication. The respondent intervened and claimed a share of the estateaccording to the Thesavalamai, but the appellant contended that she hadforfeited such rights by signing document “ X ” (see translation XI andX2), whereby the appellant urged she had given up all her rights to a sharein the intestate estate and had surrendered those rights. This is the solequestion that has Jto be decided in this appeal, namely, whether therespondent had given up all her rights to a share of her father’s intestateestate by document “X” or not. If she had given up such rights, therespondent would fail in this appeal; and if she had not, the appeal wouldhave to be dismissed with costs, leaving it to the respondent to make herclaim with regard to specific properties belonging to the intestate at thetime of his death according to the Thesavalamai, on the footing that sheis a daughter of the intestate by the first bed who had not forfeited herrights.
There are only two questions which arise in this appeal, the firstquestion, being what is the exact interpretation of deed “ X ”. The secondquestion, which is one of law only, arises if I interpret “ X ” in the sensein which it was contended for by Mr. de Zoysa for the appellant. Someevidence was led in this case as to the circumstances in which thisdocument came to be drawn up and these circumstances are ofconsiderable importance on the question of the interpretation of “X ”.It appears the respondent is the daughter of the intestate by his first wifeand that, after the latter’s death, the intestate married the appellan/tin 1893, by whom he had several children. In 1899 the intestateadministered the intestate estate of his first wife in testamentary case
1 3 Moore Privy Council cases 316.
AKBAR J.—Nachipillai v. Velupillai.
No. 539. By deed R 3 dated June 19, 1900, he transferred two lands asthe mudusam property of his late wife to the respondent. By R 4 datedJune 28, 1900, he transferred half of a certain land to the respondent, asthe half of a tediatetam or acquired property under the Thesavalamai.He stated in that deed that the omission to include this share in the firstdeed was due to an oversight.
On May 1, 1901, the respondent was married and “ X ” is dated May 3,1901. Under the Thesavalamai, Chapter III., on the death of therespondent’s mother she was entitled to all the mudusam property of hermother and half of the tediatetam property or property common to thetwo spouses acquired by either of them and retained in his or her name,the other half going to the surviving spouse, namely, the respondent’sfather. As the intestate married a second time, as regards his estate it willbe divided equally between the children of the first bed and the childrenof the second bed. By section 11 of the old code, when a father wishes tomarry a second time, the children of the first bed are to be brought up byclose relatives and the father must give up the whole of the mudusamproperty and the half of the tediatetam property to such guardians to beused for the benefit of the children. If these facts are kept in mind, oneis able .to appreciate the full import of the document “ X ” in spite ofcertain ambiguous words appearing in the 'English translation. I thinkthe clear intention was that in consideration of the transfer of jewelleryworth Rs. 300, the respondent and her newly married husband agreed togive up any claim that the respondent may have in respect of anytediatetam property which may still be in the possession of her father.The deed R 4 gives a clue to the meaning of the words in document “ X ”.The words •“ for the share which ought to devolve on the second named ofus out of his properties ” are explained further by the subsequent words“ we have no further right or claim over the properties movable orimmovable in his possession ”. I think this was the clear intention of thedocument and it cannot in any way be construed as meaning that therespondent abandoned all claims which she may have to a share in theintestate estate of her father whenever he happens to die intestate. Thisis the view to which the District Judge has himself come and I thinkit is correct.
As my brother pointed out during the argument, if the object of theintestate in getting document “ X ” signed by the respondent was todeprive her of her share in his intestate estate on his death, nothing couldhave been easier than for him to have made a will leaving his property tohis children by the second bed. This finding concludes this appeal, buta further point of law was referred to during the argument, which is ofsuch importance that I think I should indicate it shortly in my judgment.
It will be noticed that even if agreement “ X ” is given the effect Mr. deZoysa contended that it had, the question arises whether such an agree-ment is valid in law. When a person dies, by the law of intestatesuccession his heirs get certain shares in the intestate property. Can theeffect of that law be taken away by contract between the intestate andone of the would-be heirs? Mr. de Zoysa quoted a passage from Berwick’sVoet, p. 80, namely, Book XVIII., title 4, but that is a reference to a passage
DALTON J.—Hoare & Co. v. Rajaratnam.219
from the Code Book II., title 3, paragraph 30, which relates to a pact betweentwo heirs. It is stated there that a pact between two heirs is saidto be valid when it relates to the share of one of them in the estate of a,person not yet dead, if it is known to and is acquiesced in by the intestatetill his death. But even so this refers only to an agreement between twoheirs and I do not think the principle could be extended to the case nowbefore me. Reference may be made in this connection to Volume IV. ofBurge’s Colonial Laws (old edition, p. 236), where Burge notes that theCivil Law rejected a renunciation of the legitime. I need not say anythingfurther on this point of law as it does not arise for decision in view of myopinion on the question of the interpretation of the document. In thisview the appeal should be dismissed with costs.
Garvin S.P.J.—I agree.
NACHIPILLAI v. VELUPILLAI et al